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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: August 27, 1996
Customedix Corporation
(Exact name of registrant as specified in its charter)
Delaware 1-7081 22-1844840
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification
incorporation) Number)
53 North Plains Industrial Road, Wallingford, Connecticut 06492
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code:
(203) 284-9079
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ITEM 5. OTHER EVENTS.
The press release of Customedix Corporation, dated August 27, 1996, is
incorporated herein by reference and a copy of such press release is attached as
an exhibit hereto. Also attached as an exhibit hereto is the Order and Final
Judgment of the Court of Chancery of the State of Delaware.
ITEM 7. EXHIBITS.
The following exhibits are filed as a part of this Current Report on
Form 8-K.
Exhibit No. Description
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Exhibit 99.1 Press Release of Customedix Corporation, dated August
27, 1996.
Exhibit 99.2 Order and Final Judgment, dated August 27, 1996, in
the action captioned In Re Customedix Corporation
Shareholders Litigation, Consolidated C.A. No. 14812.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
August 27, 1996 CUSTOMEDIX CORPORATION
By: /s/ Barry L. Kosowsky
Name: Barry L. Kosowsky
Title: Secretary
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EXHIBIT INDEX
Exhibit No. Description
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99.1 Press Release of Customedix Corporation, dated August 27,
1996.
99.2 Order and Final Judgment, dated August 27, 1996, in the
action captioned In Re Customedix Corporation Shareholders
Litigation, Consolidated C.A. No. 14812.
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NEWS
RELEASE
Summary: Customedix Corporation (AMEX:CUS)
Order and Final Judgment entered in
Delaware Litigation
Company Contact: Joseph A. MacDougald
Director of Investor Relations
(203) 284-9079
FOR IMMEDIATE RELEASE:
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WALLINGFORD, CONNECTICUT, August 27, 1996. . . . CUSTOMEDIX CORPORATION
(AMEX:CUS) announced today that an Order and Final Judgment has been approved
by the Court of Chancery of the State of Delaware in the consolidated
stockholder litigation involving Customedix and the members of its Board of
Directors captioned In Re Customedix Corporation Shareholders Litigation (C.A.
No. 14812). The Order and Final Judgment was entered pursuant to a Stipulation
of Settlement, dated July 25, 1996, between the parties to the litigation.
Pursuant to the Order and Final Judgment, the Court, among other things,
(i) certified the Consolidated Action as a class action on behalf of a plaintiff
class (the "Class") composed of all record and beneficial owners of shares of
Customedix stock from and including February 5, 1996, through and including the
date of consummation of the anticipated merger of Customedix and CUS
Acquisition, Inc., a recently-formed corporation to be owned by Dr. Gordon
Cohen, Chairman of the Board and Chief Executive Officer of Customedix, and a
partnership comprised of certain trusts for the benefit of members of the Cohen
family, as contemplated by the Agreement and Plan of Merger, dated as of June
10, 1996, between CUS Acquisition, Inc. and Customedix; (ii) approved the
Stipulation of Settlement, and the terms and conditions of the settlement set
forth in the Stipulation, as fair, reasonable, and adequate; (iii) dismissed the
Consolidated Action with prejudice against plaintiffs and each member of the
Class on the merits; and (iv) awarded the attorneys for the plaintiffs and the
class attorneys fees and expenses in the aggregate amount of $200,000, to be
paid by Customedix for the benefit of the individual defendants.
Pursuant to the Stipulation, the parties have the option to withdraw
from the settlement under certain circumstances, including in the event the
merger of Customedix and CUS Acquisition, Inc. is not consummated in accordance
with the terms of the Agreement and Plan of Merger.
Under the terms of the proposed merger, all stockholders of Customedix,
other than Dr. Cohen and the Cohen family trust partnership, will receive $2.375
for each share of Customedix stock owned by them. Consummation of the proposed
merger is subject, among other things, to the anticipated approval by the
Customedix stockholders.
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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
<TABLE>
<S> <C>
IN RE CUSTOMEDIX CORPORATION Consolidated
SHAREHOLDERS LITIGATION Civil Action No. 14812
</TABLE>
A hearing having been held before this Court (the "Court") on August 27,
1996, pursuant to the Court's Order of July 31, 1996, (the "Scheduling Order"),
upon a Stipulation of Settlement, dated July 25, 1996 (the "Stipulation"), of
the above-captioned action (the "Consolidated Action"), which is incorporated
herein by reference; it appearing that due notice of said hearing has been given
in accordance with the aforesaid Scheduling Order; the respective parties having
appeared by their attorneys of record; the Court having heard and considered
evidence in support of the proposed Settlement (as defined in the Stipulation);
the attorneys for the respective parties having been heard; an opportunity to be
heard having been given to all other persons requesting to be heard in
accordance with the Scheduling Order; the Court having determined that notice to
the Class (as defined below) preliminarily certified, pursuant to the aforesaid
Scheduling Order, was adequate and sufficient; and the entire matter of the
proposed Settlement having been heard and considered by the Court;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED this 27th day of August, 1996,
that:
1. The form and manner of notice given to the members of the Class, as
provided in the Scheduling Order, is hereby determined to have been the best
notice practicable under the circumstances and to have been given in full
compliance with the requirements of due process and of Court of Chancery Rule
23.
2. Based on the record of the Consolidated Action, each of the provisions
of Court of Chancery Rule 23(a) has been satisfied and the Consolidated Action
has been properly maintained according to the provisions of Court of Chancery
Rules 23(b)(1) and (b)(2). Specifically, this Court finds that (1) the Class
contemplated in the Consolidated Action is so numerous that joinder of all
members is impracticable, (2) there are questions of law or fact common to the
Class, (3) the claims of the representative plaintiffs are typical of the claims
of the Class, and (4) the representative plaintiffs have fairly and adequately
protected the interests of the Class. This Court further finds that (a) the
prosecution of separate actions by or against individual members of the Class
would create a risk of (i) inconsistent or varying adjudications which would
establish incompatible standards of conduct for the parties opposing the Class
or (ii) adjudications which would as a practical matter be dispositive of the
interests of the other Class members not parties to the adjudications or
substantially impair or impede the ability of other Class members to protect
their interests or (b) the parties opposing the Class have acted or refused to
act on grounds generally applicable to the Class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with respect to the
Class as a whole. The Consolidated Action is certified as a class action,
pursuant to Court of Chancery Rules 23(b)(1) and (b)(2), on behalf of a class
composed of all record and beneficial owners of shares of Customedix Corporation
("Customedix" or the "Company") stock from and including February 5, 1996
through and including the date of consummation of the Merger as contemplated by
the Merger Agreement, including their successors-in-interest, predecessors,
legal representatives, trustees, heirs, assigns or transferees, immediate and
remote, and excluding defendants and their affiliates (the "Class"); and the law
firms of Wolf Popper Ross Wolf & Jones, L.L.P.; Wechsler Harwood Halebian &
Feffer LLP; and Faruqi and Faruqi, L.L.P. are certified as co-lead counsel for
the Class ("Class Counsel").
3. The Stipulation and the Settlement are approved as fair, reasonable, and
adequate and shall be consummated in accordance with their terms and conditions.
4. The Consolidated Action is dismissed with prejudice against plaintiffs
and each member of the Class on the merits, each party to bear its own costs,
except as provided in the Stipulation, and any and all claims, rights, demands,
actions, causes of action, suits, damages, losses, obligations, judgments,
matters and issues, of
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any kind or nature whatsoever, whether known or unknown, foreseen, unforeseen or
unforeseeable, asserted or unasserted, contingent or absolute, suspected or
unsuspected, disclosed or undisclosed, hidden or concealed, matured or
unmatured, material or immaterial, which have been, could have been, or in the
future can or might be asserted in the Consolidated Action or in any court,
tribunal or proceeding (including, but not limited to, any claims arising under
state or federal law relating to any alleged fraud, breach of any duty,
negligence, violations of federal securities laws or otherwise) (collectively
"Claims"), by or on behalf of plaintiffs in the Consolidated Action and/or any
member of the Class, whether individual, class, derivative, representative,
legal, equitable or any other type or in any other capacity, which have arisen,
arise now, or hereafter arise out of or relate in any manner whatsoever,
directly or indirectly, to the allegations, facts, events, transactions,
occurrences, acts, statements, representations, misrepresentations, omissions,
or any other matter, thing or cause whatsoever, or any series thereof, involved,
embraced, set forth, referenced in, or otherwise referred or related to, in any
way, directly or indirectly, the Consolidated Action, any of the Complaints, the
Merger Agreement, the Original Proposal, the Merger Proposal, the Merger, any
agreements or disclosures relating to the Original Proposal, the Merger
Proposal, the Merger Agreement or the Merger, including but not limited to the
Proxy Statement, or the Stipulation (as defined in the Stipulation), excepting
only such rights created under the Stipulation (collectively, the "Settled
Claims") against any of the defendants in the Consolidated Action, their
families, parent entities, affiliates, associates or subsidiaries, or each of
their present or former officers, directors, stockholders, agents, employees,
attorneys, representatives, advisors, investment advisors, investment bankers,
commercial bankers, financial advisors, trustees, general and limited partners
and partnerships, heirs, executors, personal representatives, estates,
administrators, predecessors, successors, assigns, and any other person or
entity acting on behalf of any defendant (collectively, the "Released Persons")
are hereby fully, finally, and forever compromised, extinguished, dismissed,
discharged and released with prejudice; provided however, that the Settled
Claims shall not include an action to enforce compliance with the terms of the
Settlement or to prosecute properly perfected appraisal rights relating to the
Merger pursuant to 8 Del. C. sec. 262.
5. The plaintiffs, Class Counsel and all members of the Class, either
directly, individually, derivatively, representatively or in any other capacity,
are permanently barred and enjoined from instigating, instituting, commencing,
asserting, prosecuting, continuing or participating in any way in the
maintenance of any of the Settled Claims in any court or tribunal of this or any
other jurisdiction against any Released Person.
6. The attorneys for the plaintiffs and the Class are awarded attorneys'
fees and reimbursement of expenses in the aggregate amount of $200,000, which
sum the Court finds to be fair and reasonable, to be paid exclusively by
Customedix for the benefit of the Individual Defendants in accordance with the
terms of the Stipulation.
7. Without affecting the finality of this Order and Final Judgment in any
way, this Court reserves jurisdiction of all matters relating to the
administration and consummation of the Settlement.
/s/ Bernard Balick
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Vice Chancellor
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